New DUI Technology used by Police in Kane County, Illinois

Drivers in Kane County Illinois should be aware of new technology being used by police officers during routine traffic stops. The device is called a PAS IV “Sniffer.” It senses the presence or absence of alcohol without requiring the driver to blow into a mouthpiece. In fact, it senses the presence of alcohol without any participation by the driver at all. Because the PAS IV is incorporated into a standard-looking police flashlight, a driver may not even know the police officer has used the device to “sniff” for the presence of alcohol.

One may think that this device violates the driver’s Fourth Amendment rights against an unreasonable search and seizure, or at least the driver’s privacy rights under the Due Process Clause of the Constitution. However, last week Associate Judge Allen Anderson of Kane County ruled results from the PAS IV may be used as reasonable suspicion to request that a suspected drunken driver undergo field sobriety tests.

It should be remembered, however, that a driver is not required to participate in field sobriety tests (FST) such as the portable field Breathalyzer, the one-legged stand, or the walk and turn test. Police use these tests to determine whether they have probable cause that the driver was under the influence while driving. Once the officer compiles enough observations to form probable cause, he will arrest the driver. However, there is no refusing the PAS IV. It looks like a flashlight and can detect the presence of alcohol up to 10 inches away; thus the test can be completed before the driver has any opportunity to refuse.

There is good news, however. This device only measures the presence of alcohol. A good DUI attorney can make several arguments to lessen the impact of the results. For example, the presence of alcohol can be attributed to a passenger who has been drinking since the device does not determine the origin of the alcohol.

Also, although this judge ruled that it is legal for the police to use the PAS IV, his ruling seems to contradict the 2001 Supreme Court decision in Kyllo v. US. In Kyllo, the Supreme Court held that police could not use thermal imaging (infrared) scanners to look at homes for evidence of crimes without a warrant. Justice Scalia, writing for the majority, explains the Supreme Court’s reasoning:

We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area",(Silverman, 365 U.S., at 512), constitutes a search-at least where (as here) the technology in question is not in general public use.

The PAS IV works much the same way as the infrared devices in Kyllo. Except for a few narrowly defined exceptions, the police need a warrant to search one’s automobile. It is one thing if the smell of alcohol leaves the vehicle; it is another thing if the police must enter the vehicle to find it. One is constitutional, the other is not.

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